UBC Law: History

Chapter 9: Opening the Portals

The Doorkeepers

THE ESTABLISHMENT OF A UNIVERSITY FACULTY OF LAW in British Columbia marked a transition in the point of admission to the legal profession that, over time, would have a powerful impact on the composition and structure of the profession in the province. By transferring the early stages of training for the practice of law to the university, qualifying was opened up to visible, public, and meritocratic criteria. Articling was deferred and any of a number of informal, highly personal screening mechanisms that then came into play were relegated to a position of secondary importance. The initial doorkeeper of the legal profession had been powerfully, irrevocably changed.

Peter Sibenik’s discussion of turn-of-the-century legal education in Prairie Canada opens with an evocative passage from Franz Kafka’s Before the Law:

Before the Law stands a doorkeeper. To this doorkeeper there comes a man from the country and prays for admittance to the Law. But the doorkeeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. "It is possible," says the doorkeeper, "but not at the moment." Since the gate stands open, as usual, and the doorkeeper steps to one side, the man stoops to peer through the gateway into the interior. Observing that, the doorkeeper laughs and says: "If you are drawn to it, just try to go in despite my veto. But take note: I am powerful. And I am only the least of the doorkeepers. From hall to hall there is one doorkeeper after another, each more powerful than the last. The third doorkeeper is already so terrible that even I cannot bear to look at him." These are difficulties the man from the country has not expected; the Law, he thinks, should surely be accessible at all times and to everyone.

Sibenik’s article goes on to explain that, contrary to much recent theorizing about the alleged evils of the organized legal profession, Prairie lawyers have not in fact always sought selfishly to advance their own economic interests by artificially restricting entrance to the legal profession. His article and the quotation with which it starts do, however, serve to remind us that any system of legal education has the effect of restricting admission to the practice of law. It also puts us on notice that educational structures and more general issues relating to fitness to practice are closely related.

A similar theme was developed by Brian Dickson, formerly Chief Justice of Canada. In 1986 he said that "the ethos of the profession" is set by "the gatekeepers to legal education, namely those involved in the admissions process". The "gate" to the Canadian legal profession in the past, as now, has been guarded by formal admissions policies, the exercise of unregulated discretionary power, and by a host of subtle and not-so-subtle attitudes within the academy, law societies, and the profession at large.

However humble, all "doorkeepers" exercise discretion and, therefore, power. Their behaviour can be courteous, non-intrusive, and helpful, or it can be arbitrary, discriminatory, irrational, and mean-spirited. The finest doorkeepers can too easily slip from diligence to officiousness and from officiousness to capriciousness. Class, race, gender, ethnicity, belief, sexual orientation, religious faith—indeed, any perceived personal characteristic, belief, or trait—can, in the wrong circumstances, bar entry. Many such ascribed characteristics have in fact become obstacles—even insurmountable barriers—to a legal career in British Columbia. The law society has, at times, been overly diligent in its admissions screening. Too often the principles invoked have been tied to cultural exclusion rather than to knowledge, ability, or integrity. Sometimes decision-makers literally cannot tell the difference.

The "doorkeepers" to the Bar have been remarkably concerned with gender but also with ethnic origin and political belief. Along with the rest of Canada, British Columbia had developed a complicated structure of discriminatory laws and policies by the time the Second World War broke out. To greater or lesser degree, public policy sought to allocate individuals to a status and role deemed appropriate to their sex, national origin, or other traits. Basic civil rights have been denied to many Canadians because of their "race" or ethnicity. Further blatantly racist legislation was rushed into place during the crisis years of the Second World War. The legacy of expropriation of property, internment, and displacement from British Columbians of Japanese origin is well known and has besmirched Canada’s reputation.

Although others suffered in British Columbia, the Asian community bore the brunt of racism and ethnic discrimination during the first fifty years of the century. Jewish Canadian lawyers in the province did not apparently encounter the difficulties then common in other parts of the country. The Jewish Western Bulletin of March 17, 1994, quoted David Freeman as remembering that during the 1920s and 1930s "discrimination . . . was deflected onto Chinese, Japanese and East Indians. . . . But the Jews were free to do whatever they wanted". In Toronto, by contrast, he could not find articles in the mid-1930s because "[n]one of the firms" there "would hire Jewish graduates at the time". An Irish Catholic lawyer who himself had suffered from the intolerance of the Toronto establishment eventually took him on. At that time, Freeman recalled, "[t]hat sort of professional discrimination was completely foreign to Vancouver".

It is much to the credit of mid-century Canadians that many worked actively to dismantle both the artificial barriers that stood in the way of "talent" and the attitudes that supported them. One small but significant incident occurred at the University of British Columbia shortly after Dean Curtis arrived to establish the law faculty. President MacKenzie was then in the habit of consulting with deans on important matters of policy. On one occasion he sounded them out on the stance the university should adopt regarding racial exclusions. Curtis recalled that:

A Japanese grade 12 student who was attending school upcountry, where her parents had been "evacuated" in 1942, had just won a provincial scholarship to attend UBC. But the restrictions against Japanese living at the Coast were still on. Would the University incur public criticism if it sought exemption from the restrictions for the young lady? I expressed my settled view on the responsibility of universities. . . . I added that I would check with my veteran students to make sure I was right. I did. To a man they spontaneously said that the University should not think twice about getting permission; moreover, the ex-majors, wing commanders and other ranks, gave their opinions in decisive terms. "What in the name of all that is holy," more than one asked, "had they fought the war for?"

The mood of the times was such that Canadians gradually—it must have seemed painfully slow to the victims—began dismantling the most egregiously discriminatory polices. Their destruction of a legacy of racism was neither immediate nor fully uniform at all times. Nonetheless, the general direction was toward a breaking down of formally sanctioned racism.

Awful though they are, formal barriers to full participation in the life of a community are only the first of many difficulties that victims of discrimination face. Just as Kafka’s man from the country learns that "there is one doorkeeper after another, each more powerful than the last", so too some of those who have sought careers at law in twentieth-century British Columbia have encountered a continuing series of obstacles to professional success. Like images caught between two mirrors, they recede in seemingly infinite number. Only the crudest, earliest, and most obvious of these obstacles involved a formal policy of exclusion based on gender, "race", or political belief. Well after formal blanket exclusions were withdrawn to allow the entrance of women and Canadians of First Nations or Asian origin, "more powerful", secondary, tertiary, and quaternary doorkeepers confronted many would-be lawyers. These doorkeepers lurked in classrooms, judges’ chambers, and law offices, covering the gamut from simple, blinkered insensitivity through to ingrained, blatant, and deliberate racism, sexism, or bigotry. It is horrific to consider that anti-Semitism may actually have increased in British Columbia’s civil society just as the Nazi horrors were being revealed. This is certainly the impression of one prominent Jewish lawyer, who remembered that "[t]he Holocaust exposed the non-Jewish community here to anti-Jewish ideas." "Some of those ideas, unfortunately, stuck", David Freeman said in a 1994 interview.

The doorkeepers of law are polymorphous, omnipresent, and unpredictable. Their dismissal from service can never be final or taken for granted.

Racism and the Legal Profession

Although British Columbia moved dramatically in the years immediately following the Second World War it is important to appreciate that within living memory egregious racism represented a political mainstream. While individual lawyers have always been found to fight injustice of all sorts, the early law society was often a willing accomplice in both racism and sexism.

Although the efforts of the Vancouver Law Students’ Society was crucial to the establishment of a formalized system of legal education in the province, to their lasting discredit, the students also lobbied the provincial law society on other issues. On January 19, 1918, according to Alfred Watts:

[T]hey petitioned the Benchers that Asiatics be prohibited from becoming members of the Law Society. At that time the provincial Electors Act prohibited Asiatics the right of being on the voters’ list. Acting on the law students’ petition the Benchers amended Rule 39 to require applicants to be among other requirements: "a British subject and who would, if of the age of twenty-one years, be entitled to be placed on the Voters’ List under the Provincial Elections Act."

This situation continued until the Provincial Elections Act was amended in 1949 and until that date had the effect of barring among others the First Nations of British Columbia, who obviously should have been entitled.

As late as 1942, the Victoria Daily Times carried the headline "No Oriental Lawyers in this Province". The article reported the apparent satisfaction expressed by an unidentified member of the law society who explained that " ‘We have had one or two applications for enrolment as students. Chinese and Japanese are not on the voters’ list and persons not on the voters’ list cannot become lawyers.’ "

While it may be understandable that xenophobia heightened during wartime, British Columbia has a long history of discrimination against both the first peoples of the region and immigrants from Asia, among others. The organized legal profession has, in the past, been thoroughly implicated in this sorry tale and clearly is not innocent.

Against this background, the response of a class of veterans when Dean Curtis put to them the question of how the university should respond to the problem of admitting a high school graduate of Japanese–Canadian origin marks a significant turning point. Dean Curtis, explained his views in a 1995 interview. The law faculty, he said, "has to be open". It should be "[o]pen to all the talents, open to all the views. . . . Equally so the students." The earliest students of Asian origin, Curtis recalled, were "a little apprehensive, because they’d been under a cloud, you see". They told the Dean, however, that in fact "they were welcomed here as equals, with no exception".

Chapter 9 continued